UK Parental Leave Reforms Mark Bold Move Away From Inflexibility

Under current regulations in the UK, fathers can take two weeks' leave around the time of birth. They can then take a further 26 weeks' leave but only when the baby is 20 weeks old, and even then, only if the mother has returned to work.

The Children and Families Act overhauls the rights of parents to take time off work with the aim of bringing a greater emphasis to sharing responsibility.

The mother of a child born on or after 5 April 2015 will still be entitled to 52 weeks' statutory maternity leave and 39 weeks' statutory maternity pay, if eligible.

However, she will be able to share both her leave and her pay with the father if she ends her maternity leave. The earliest shared parental leave (ShPL) can start is two weeks after the birth (the period of the mother's compulsory maternity leave). Similar rules apply to adoptive parents and intended parents in surrogacy arrangements.

The two parents will be able to decide between them how much leave each will take and whether to take time off in turns or together. To be eligible the mother and father must have a caring responsibility for the child (so the right is not limited to biological parents) and meet certain wage and length of service requirements.

A father who wishes to take ShPL must then notify his employer that he wishes to opt into the ShPL system, then discuss a proposed pattern of leave. A father will be able to take their leave all in one go or in separate blocks, although each period of leave must last no less than a week.

If agreement cannot be reached, the default position is that the period of leave must be taken in a single block. The mother will need to do the same and to formally end her maternity leave.

This new ShPL regime marks a bold move away from the current highly gender-based and inflexible approach to parental leave, giving fathers much greater scope to take leave after their baby's birth.

Under the new legislation, parents will have much greater choice over how and when they take parental leave. Attitudes to taking leave, and particularly to fathers taking leave, may gradually change, although there will be no overnight fix.

Pay is a key factor. It is widely believed that the current reluctance of many fathers to take paternity leave comes down to the lack of financial support for such leave, with many fathers still being the main breadwinner.

Although fathers will have the right to share the entitlement to 39 weeks' statutory maternity pay (shared parental pay), one particularly complex issue will be how the new rules affect enhanced maternity pay schemes that are offered by many employers, and, in particular, whether equivalent enhancements will have to be offered to men who take flexible parental leave.

Some employers may seek to do this in any event. If such a scheme were to be offered to men, through good will or perhaps eventually, as a result of challenge, then that would no doubt be a significant factor in men choosing to take more leave.

In any event, the new rules recognise that increasingly there are families where the mother is the high earner and in that event, an earlier return, whilst nonetheless addressing care for the child, can be achieved.

Audrey Williams is an employment partner at law firm Eversheds